In a biting opinion regarding a motion to strike a damages analysis, Judge Forrest of the Southern District of New York struck the entire report of Wayne Hoeberlein, CPA.
The case involved accusations of trade secret misappropriation associated with scented packaging, as well as breach of contract. Mr. Hoeberlein was retained by plaintiff attorneys to derive damages. Mr. Hoeberlein appears to have relied (almost entirely) on a packaging expert, Dr. Sand, whose own opinions on the likelihood for commercialization were also struck by Judge Forrest.
Courts rightfully and reasonably afford damages experts the capacity to rely on the testimony of other experts (e.g., technical experts or licensing experts); however, when doing so, Courts do not simultaneously afford those damages experts a capacity to suspend their critical faculties Where damages experts do not ask critical questions, push back against unreasonable and unsubstantiated damages theories, or ignore countervailing documents and data, they run high likelihood of having opinions excluded.